Possible Changes in Florida's Capital Punishment System

Published March 12th, 2013

TALLAHASSEE, Fla. (AP) - In what would be a significant change to the state's capital punishment system, a Florida Senate panel discussed a bill Monday to require a jury to unanimously recommend the death penalty.

The Senate's Criminal Justice committee took up the bill (SB 148), but ran out of time to vote. Sen. Thad Altman, a Viera Republican who's co-sponsoring the bill, said the measure would likely return to the committee next week.

Thirty-three states impose the death penalty. Florida and Alabama are the only ones that do not require a unanimous vote of the jury.

The bill also would require jurors in a death-penalty murder case to vote on "aggravating circumstances," factors that increase "the gravity of a crime or the harm to a victim." The jury also must agree unanimously on any evidence that supports a death recommendation.

Altman explained his aim with the bill is to achieve better justice.

"I really believe a unanimous (recommendation) will enable us to have a more effective and accurate system, especially when you have jurors that may be ambivalent on the death penalty," he said. "I think it would enable us to be tougher on crime by requiring a unanimous (recommendation), by making the penalty phase the same as the conviction phase."

Jurors in Florida must be unanimous to convict, but may vote with a simple majority to recommend the death penalty. The trial judge must give "great weight" to the recommendation, and usually follows the jury's suggestion as to death or life imprisonment.

In 1976, the U.S. Supreme Court upheld Florida's system of death penalty sentencing.

"Recommendations are still subject to review by the judge," said Sen. David Simmons, an Altamonte Springs Republican who's skeptical of the measure. "The present system provides the assurance that one juror would not be able to prevent imposition of the death penalty simply because of personal belief."

The bill would make four changes to existing law:

- If jurors are going to recommend death, they first must find that sufficient aggravating circumstances aren't outweighed by mitigating evidence.

- The jury must agree by a unanimous vote on any aggravating circumstances that support the death recommendation.

- The vote on the aggravating circumstances has to be recorded on a special verdict form.

- Jurors then must agree unanimously to recommend the death penalty.

But William Eddins, state attorney for the 1st Judicial Circuit, said passing the bill would guarantee that more convicts now on Death Row in Florida will challenge their sentences, saying they too should have gotten a unanimous recommendation.

Eddins, also president of the Florida Prosecuting Attorneys Association, noted that famed Florida killers Ted Bundy and Eileen Wuornos were put to death without a unanimous recommendation for death penalty.

But other experts, including retired Florida Supreme Court Justice Harry Lee Anstead, told the panel that requiring unanimity in jury recommendations actually would make Florida's death penalty more immune to appeals and constitutional challenges.

The idea is to "leave the worst of the worst" to capital punishment, Anstead said, and "in that class of cases, be most certain that the death penalty should be applied."

But a bill analysis points out that the Florida Supreme Court on direct appeal affirmed 63 percent of cases in which there were unanimous jury recommendations, as opposed to 53 percent of cases in which a 12-member jury voted 7-5 for death.

"It appears then that a unanimous jury vote is not as strongly correlated with an affirmed sentence as perhaps logically predicted," it said.